?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 30/03/2009 *CORAM THE HONOURABLE MR.JUSTICE A.KULASEKARAN +WP.13456 of 2000 #Raja $The Tahsildar !For Petitioner: T.Muruga Manickam ^For Respondent: V.Viswanathan :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30-03-2009
CORAM:
THE HONOURABLE MR.JUSTICE A.KULASEKARAN
W.P. No. 13456 of 2000
-o-
1. Raja
2. Murugesan .. Petitioners
Versus
1. The Tahsildar
Gangavalli Taluk
Salem District
2. The Village Administrative Officer
Ulipuram Village
Gangavalli Taluk
Salem District .. Respondents
Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorari as stated therein.
For Petitioners : Mr. T. Muruga Manickam
For Respondents : Mr. V. Viswanathan
Additional Government Pleader
ORDER
The petitioners have filed this writ petition praying for a Writ of Certiorari by calling for the records relating to the un-numbered Form-I dated 01.06.2000 issued under Section 8 of the Tamil Nadu Revenue Recovery Act, 1864 on the file of the first respondent herein in respect of S.No.236/1, Ulipuram Village, Gangavalli Taluk, quash the same.
2. Heard both sides. The property, which is the subject matter of this writ petition, was sought to be attached by the first respondent by issuing order in Form No.I dated 01.06.2000 invoking Section 8 of the Revenue Recovery Act, 1864, which is challenged in this writ petition.
3. Mr. Muruga Manickam, learned counsel appearing for the petitioners submitted that except the impugned communication, no notice or order was issued to the petitioners relating to the issue involved in this writ petition; that the first respondent issued the impugned order to attach the immovable property of the petitioners comprised in Survey No.236/1, which was purchased by them on 11.03.1996; that in the impugned order the name of the petitioners’ Vendor alone is mentioned and the petitioners name is not found; that the petitioners are not liable to pay any amount to any authorities; that in the impugned order, it is alleged that the petitioners’ vendor was liable to pay certain arrears of stamp duty to the authorities under the Registration Act; that in such event, the said authorities ought to have issued a Certificate as contemplated under Section 33-A of the Indian Stamp Act, 1899 for which prior enquiry, that too within three years from the date of registration of the document are required, but those mandatory conditions were not complied with by the respondents prior to the issuance of the impugned order, moreover, the respondents cannot proceed against the property of the petitioners, as the same was transferred in their name as early as 1996; that assuming for argument sake if Section 8 of the Revenue Recovery Act, 1864 is applicable, then there should be a notice of demand in writing by the respondents but no such demand in writing has been served on the petitioners and prayed for allowing the writ petition.
4. On the above contention, this Court heard the learned Additional Government Pleader appearing for the respondents, who, relying on the counter affidavit, submitted that the petitioners have purchased the property in Survey No.236/1 and 236/4, to a total extent of 3.29 acres from one Nagarani; that the said Nagarani is liable to pay arrears of stamp duty in respect of the said land; that the said Nagarani sold the property to the petitioners, hence, the respondents are entitled to collect the said amount from the petitioners and prayed for dismissal of the writ petition.
5. This Court carefully considered the submission of counsel for both sides and perused the materials placed. It is submitted by the petitioners that except the impugned communication, no notice or order was served on them relating to the issue involved in this writ petition. The impugned communication was issued under Section 8 of the Revenue Recovery Act, 1864 to recover the alleged arrears of stamp duty payable by the petitioners’ vendor, however, it was not issued in the name of the petitioners, but only in the name of their vendor., Though they have purchased the property as early as 1996 and their names were also stated to have been incorporated in all the records of the authorities concerned, it is not explained why the impugned communication was not issued in the name of the petitioners.
6. Now, we look into Section 8 of The Tamil Nadu Revenue Recovery Act, 1864, which runs as follows:-
“8. Rules for seizure and sale of movable property.- In the seizure and sale of movable property for arrears of revenue, the following rules shall be observed:-
1st Demand in writing Defaulter to be served with a copy.- The Collector, or other officer empowered by the Collector in that behalf, shall furnish to the person employed to distrain the property of a defaulter, a demand in writing and signed with his name, specifying the name of the defaulter, the amount of the arrears for which the distress maybe issued, and the date on which the arrears fell due. The person employed to distrain shall produce the writing which, if the arrear together with the batta due to him under Section 53 be not at once paid, shall be his authority for making the distress, and on the day on which the property may be distrained, shall deliver a copy of such writing to the defaulter, endorsing thereon a list of inventory of the property distrained and the name of the place where it may be lodged or kept.
2Nd Writing to State that the distrained property will be sold.- The writing shall further set forth that the distrained property will be immediately brought to the public sale, unless the amount, with (penalty), batta and all the expenses of the distress, be previously discharged.
3Rd Service when defaulter is absent.- When defaulter may be absent a copy of the writing with the endorsement, shall be fixed or left at his usual place of residence, or on the premises where the property may have been distrained, before the expiration of the third day, calculating from the day of the distress.”
7. Section 8 of the Revenue Recovery Act says that the Collector, or other officer empowered by the Collector in that behalf, shall furnish to the person employed to distrain the property of a defaulter, a demand in writing and signed with his name, specifying the name of the defaulter, the amount of the arrears for which the distress may be issued, and the date on which the arrears fell due. It is seen from the impugned communication that nothing whispered about the date on which the arrears fell due. It is further seen from Section 8 of the said Act that the authorities, for making the distress on the date on which the property may be distrained shall deliver a copy of such writing to the defaulter, endorsing thereon a list of inventory of the property distrained and the name or the place where it may be lodged or kept. In this case, the copy of such writing not served on the defaulter i.e., the petitioners’ vendor nor the list of inventory of the property distrained is mentioned in the impugned communication. A further reading of Section 8 of the Act would make it clear that no where it is permissible to the authorities to effect recovery from the property belonging to a person other than the defaulter, though those persons have in their possession the property which earlier belonged to the defaulter. The crucial date for determination of the ownership of the property in the defaulter would be the one when process for recovery under the Act is sought to be executed against it. If on that date the property has already changed hands and is no longer the property of the defaulter, there is no jurisdiction in the Collector to issue process against that property.
8. The learned Additional Government Pleader appearing for the respondents has not cited any valid provisions of law which may give powers to the authorities to take action against the movable property in the hands of the transferree. It will be useful to refer the decision of this Court reported in (Pappammal vs. The State of Tamil Nadu, represented by the Tahsildar, Sriperumbadur, Chinglepet) 1977 II MLJ 157 wherein it was held thus:-
“A bare reading of these provisions makes it quite clear that the Collector or the officer authorised by him in that behalf can recover the arrears of land revenue only by the sale of the movable and immovable property belonging to the defaulter. They nowhere permit such recovery to be made from the property belonging to persons other than the defaulter albeit that such persons have in their possession property which earlier belonged to the defaulter. The crucial date for determination of the ownership of the property in the defaulter in the defaulter would be the one when process for recover under the Act is sought to be executed against it. If on that date the property from which the arrears are to be recovered belongs to the defaulter, it may certainly be attached and sold in execution of the Collector’s process. If, however, on that date the property has already changed hands and is no longer the property of the defaulter, there is no jurisdiction in the Collector to issue process against that property. It is true that in the case of land in regard to which land revenue has not been paid, the right of the Collector to recover it from that land and even after it has changed hands is not affected by the transfer, but that is so because that right is given to the Collector by other provisions of the Act, which are contained in Section 2 thereof and which declare that any land along with the buildings upon it shall be regarded as security of the public revenue. Learned counsel for the State has not been able to point out any provision of law, whether contained in the Act or elsewhere, which may given the Collector power to follow movable property in the hands of the transferee, and I do not see how the Tahsildar could issue process against any property belonged to the petitioner even though such property was earlier owned by the debtor-firm and was sold to the petitioner subsequent to the date of the Labour Court’s award. This was also the view taken by Ramakrishnan, J., in P. Kannamba vs. Board of Revenue.
3. Holding the action of the Tahsildar to be without jurisdiction, I accept the petition and quash the impugned order. The petitioner shall have her costs of the proceedings from the respondent State. Counsel’s fee Rs.100/-.”
9. In this context, it is necessary to look into Section 33-A of the Indian Stamp Act, which is extracted hereunder:-
33-A. Recovery of deficit stamp duty- (1) Notwithstanding anything contained in section 33 or in any other provisions of this Act, if, after the registration of any instrument under the Registration Act, 1908 (Central Act XVI of 1908), it is found that the proper stamp duty payable under this Act in respect of such instrument has not been paid or has been insufficiently paid, such duty or the deficit, as the case may be, may, on a certificate from the Registrar of the district under the Registration Act, 1908 (Central Act XVI of 1908) be recovered from the person liable to pay the duty, as an arrear of land revenue.
Provided that no such certificate shall be granted unless due inquiry is made and such person is given an opportunity of being heard;
Provided further that no such inquiry shall be commenced after the expiry of three years from the date of registration of the instrument.
(2) The Certificate of the Registrar of the District under sub-section (1) shall, subject only to appeal under sub-section (3), be final and shall not be called in question in any court or before any authority.
(3) Any person aggrieved by a certificate of the Registrar of the district under sub-section (1) may appeal to the Chief Controlling Revenue Authority. Any such appeal shall be preferred within such time, and shall be heard and disposed of in such manner, as may be prescribed.
10. It is seen from Section 33-A of the Indian Stamp Act that the arrears of stamp duty may, on a certificate issued from the Registrar of the District under the Registration Act, 1908 be recovered from the person liable to pay the duty as an arrears of land revenue, however, no such certificate shall be granted unless due enquiry is made and such a person is given an opportunity of being heard. In this case, the petitioners have stated that they are not liable to pay the arrears of stamp duty and no certificate was issued by Registrar to recover the said arrears and even if such a certificate is issued, the amount could be recovered from the person liable to pay the stamp duty and not from the petitioners. The enquiry should be commenced within three years from the date of registration of the instrument for issuance of the certificate by the Registrar, besides no certificate issued by the Registrar was produced. Even such certificate is issued, opportunity is to be afforded under sub-section (3) of Section 33-A to the aggrieved person to file an appeal before the Chief Controlling Authority. In view of the said reasons, it is not difficult to hold that there is no jurisdiction for the respondents to issue process against the petitioners property. The respondents, indeed, not furnished any detail or evidence to show the compliance of Section 8 of the Revenue Recovery Act, 1864 as well as Section 33-A of the Indian Stamp Act.
11. For the said reasons, the impugned order is quashed. The writ petition is allowed as prayed for. No costs. In case, the respondents intended to proceed to recover the amount, they can do so only by following due process of law.
30-03-2009
rsh
Index : Yes
Website : Yes
To
1. The Tahsildar
Gangavalli Taluk
Salem District
2. The Village Administrative Officer
Ulipuram Village
Gangavalli Taluk
Salem District
A. KULASEKARAN, J
rsh
WP No. 13456 of 2000
30.03.2009